LI WAI CHU AND ANOTHER v. LI WAI LING

HCAP 6/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 6 OF 2012

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J U D G M E N T

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1. This is a probate action. The parties are sisters and this action concerns the estate of their late mother Madam Chung (“the Estate”). The plaintiffs Madam Li Wai Chu (“Chu”) and Madam Li Wai Yee (“Yee”) brought this action against Madam Li Wai Ling (“Ling”) for an order that the grant of probate of the Estate dated 18 July 2011 be revoked on the grounds that the will of Madam Chung dated 20 January 2011 (“the 2^nd 2011 Will”) was invalid for want of the requisite testamentary capacity and/ or knowledge and approval on the part of Madam Chung. In the original Writ, Chu and Yee further asked for a declaration that the an earlier will of Madam Chung dated 15 October 1998 (“the 1998 Will”) be admitted to probate as her last will or alternatively for a declaration that Madam Chung died intestate.

2. Ling is one of the executors named in both the 2^nd 2011 Will and the 1998 Will. For the former, the other executor is the brother of Madam Chung, namely, Mr Chung Pui Chuen (“PC Chung”) whereas for the latter, the other executor is Yee. PC Chung renounced all his right and title to probate and execution of the 2^nd 2011 Will and hence the grant of probate was issued to Ling alone.

3. Madam Chung first made a will on 13 October 1997 (“the 1997 Will”) and it was revoked by the 1998 Will. The 1997 Will has little bearing on this action.

4. In the course of these proceedings, it transpired to Chu and Yee that apart from the 1998 Will and the 2^nd 2011 Will, Madam Chung in fact executed the 1997 Will and another will on 13 January 2011 (“the 1^st 2011 Will”). As a result of this late discovery, Chu and Yee amended their statement of claim to propound the 1^st 2011 Will instead of the 1998 Will.

5. The core issues of this action remain to be (a) the testamentary capacity of Madam Chung and (b) the knowledge and approval of the contents of the 2^nd 2011 Will when it was executed by Madam Chung on 20 January 2011.

6. I shall first give a summary of the background facts which are either common ground or indisputable in light of undisputed documentary evidence.

7. Madam Chung passed away on 1 May 2011 at the Ruttionjee & Tang Siu Kin Hospital at the age of 80. Madam Chung was diagnosed with carcinoma of the lung in 2005, which turned out to be the cause of her death as shown in her death certificate.

8. Madam Chung had altogether borne 10 children out of two relationships. In her first relationship with one Mr Wan Kui, she had seven children. Three of them died already leaving behind four sons including Mr Wan Cheuk Hung (“Hung”).

9. In her second relationship with one Mr Lee who was a policeman, Madam Chung gave birth to 3 daughters, namely, all parties to these proceedings. Ling is the eldest and Yee is the youngest. Mr Lee and Madam Chung separated in or about 1973.

10. Madam Chung had very limited education. She had never stopped fending for herself. In the 60s and 70s, she obtained extortion monies on behalf of the police and thereafter she made her living by practising usury until her death.

11. Now I should give some personal information of the parties. Ling bore her son with her boyfriend when she was very young. Then she got married with one Mr Lee. Apparently they led a comfortable life during their marriage, which was unfortunately dissolved in or about 2002.

12. Chu also has a failed marriage. She married one Mr Lau and gave birth to a daughter in 1989. They divorced in 1992. In 2000, she bore two twin boys with one Mr Chan.

13. Yee shared a similarly story with Chu. In her failed marriage, she bore a daughter. In the 1990s, after the divorce, she bore two sons with her boyfriend whom she no longer sees.

14. Both Chu and Yee live on public assistance. They admit having asked Madam Chung to lend them money from time to time. They insist that they have already repaid Madam Chung in full.

15. Madam Chung Lai Sim (“Lai Sim”) is the wife of Hung. She is a beneficiary under both the 1^st 2011 Will and the 2^nd 2011 Will.    

16. Madam Liu is the wife of one of the sons of Wan and Madam Chung. In other words, like Lai Sim, Madam Liu is the daughter-in-law of Madam Chung. She had resided with Madam Chung in her property being a flat in Paterson Building, 37 Paterson Street, Causeway Bay (“the Residence”) registered in the sole name of Madam Chung for a few months before her death. She is a beneficiary under both the 1^st 2011 Will and the 2^nd 2011 Will. 

17. Both the 1^st and the 2^nd 2011 Wills were prepared by Mr Leung of Messrs. Paul W. Tse (“PTS”), a firm of solicitors, commissioned by Madam Chung. Mr Leung was and still is a clerk and he received instructions in respect of the preparation and drafting of the two wills. Ms Chang, a solicitor of PTS, was also involved in the execution of the two wills.

18. I should now set out the major terms of the 1^st 2011 Will and the 2^nd 2011Will.

19. Ling and PC Chung were appointed executors under both the 1^st 2011 Will and the 2^nd 2011 Will.

20. In both of the 2011 Wills, Madam Chung made the following pecuniary legacies:

   (1) HK$250,000 to PC Chung;

   (2) HK$600,000 to Ling;

   (3) HK$150,000 to Chu;

   (4) HK$400,000 to Lai Sim;

   (5) HK$40,000 to Madam Liu;

   (6) HK$20,000 to Yee

21. The 1^st 2011 Will and the 2^nd 2011 Will shared an almost identical format and their contents were largely similar.  It is obvious that the latter was created by making amendments to the former. The only material differences between the two wills relate to the payment term of the monetary gift to Chu in Clause 3(3) and the dispositions of the residuary estate in Clause 3(7).

22. Clause 3(3) of the 1^st 2011 Will provided a monetary gift of HK$150,000 to be paid as a lump sum to Chu. It was amended to the effect that the same amount of the monetary gift was to be paid to Chu by monthly instalments of HK$10,000 each. It is noteworthy that indeed Madam Chung gave her reasons for such a change in the provision itself. Madam Chung stated that she worried that Chu might squander the pecuniary legacy of HK$150,000. She further stipulated how it should be disposed of if she survived Chu or if Chu passed away before all the instalments were paid to her.

23. In regard to the amendments made to Clause 3(7) relating to the residuary estate, under the 1^st 2011 Will, it was provided that all the residuary estate should be bequeathed to PC Chung, Ling, Chu and Lai Sim in equal shares.

24. In the 2^nd 2011 Will, this disposition relating to the residuary estate was amended as follows:

  (1) 1/100 (1%) of the residuary estate be bequeathed to PC Chung;

  (2) 1/100 (1%) of the residuary estate be bequeathed to Lai Sim; and

  (3) 98/100 (98%) of the residuary estate be bequeathed to Ling.

25. Therefore, under the 2^nd 2011 Will, Chu was no longer entitled to ¼ of the residuary estate or any share thereof at all.

26. I believe I have said enough background facts to set the scene.   It is convenient for me to point out at this junction that a lot of serious allegations are littered in the witness statements and affirmations of the parties, in particular, those of Chu and Yee. Chu and Yee wish this court to believe that Ling had had a problematic relationship with Madam Chung since her adolescence and so it is unreasonable for Madam Chung to intend to bequeath the bulk of the Estate to Ling. Ling has made a similar effort to explain the entitlements of Chu and Yee under the 2^nd 2010 Will.

27. I am not at all convinced the relevance of all such allegations to the pleaded issues of this action, however. Whatever happened in the distant past cannot alter the indisputable fact that Ling was appointed the executors in all of the 1998 Will and the 1^st and the 2^nd 2011 Wills. Such an appointment demonstrates the trust of Madam Chung in her. Their attempt to smear Ling is meaningless particularly given their acceptance of the validity of the 1^st 2011 Will, under which Ling also got substantial entitlements. I made it clear to the parties at the outset of the trial that I would refuse to deal with such allegations notwithstanding the application of the second rule in Barry v Butlin, which will be discussed in greater detail below,due to the involvement of Ling in the preparation of the 2^nd 2011 Will. I see no point giving such allegations any mention here and they may wash their dirty linens elsewhere.

28. Another dispute which I refuse to resolve is the contents of the Estate. This is not a pleaded issue and the parties have not filed all the relevant evidence in this regard too. I cannot work on the additional information eagerly provided to this court by the parties at trial. Given the undisputed fact that the Estate consists of at the very least the Residence, and all those properties set out in the Schedule of Estate, I am already convinced that the residuary estate is quite substantial and I do understand the financial implications of my conclusion as to the validity of the 2^nd 2011 Will to the parties.

The case of Chu and Yee

29. It is well-established that before a will may be propounded in solemn form, the proponent of the will has a legal or persuasive burden of proving on a balance of probabilities that:

(1) there was due execution of the will;

(2) the testator was of testamentary capacity; and

(3) the testator knew and approved of the contents of the wills: see Wang Din Shin v Nina Kung (2005) 8 HKCFAR 387 per Ribeiro PJ at §173   

30. In their pleadings, Chu and Yee do not make any express plea that Madam Chung was not of testamentary capacity or that she did not know or approve of the contents of the material will. There is only an averment that Ling is required to prove that the material will was executed with full knowledge and approval of its contents. Lastly, they plead that in the event that this court is not satisfied that the material will was executed by Madam Chung with sound mind and/or with full knowledge and approval of the contents, they seek a declaration of the invalidity of the will and a further order that another will be omitted to probate.

31. The averment is inadequate to raise a positive defence and it in my view serves little meaningful purpose to state the legal burden of proof of Ling in their pleadings. Any allegation of lack of testamentary incapacity or knowledge and approval should be clearly made with sufficient particulars. For the plea of want of knowledge and approval, there are specific requirements. Order 76 r.9(3) of the Rules of the High Court provides as follows,

“Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say— (a) that the will was not duly executed; (b)that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and(c) that the execution of the will was obtained by undue influence or fraud, shall be made by that party unless that other plea is also pleaded.”

32. The problems with their pleadings are obvious. There is not a clear plea of lack of testamentary incapacity. They are hence prevented by Order 76 r.9(3) from making any affirmative allegation of lack of testamentary incapacity to support their plea of want of knowledge and consent: In re Stott, deceased [1980] 1 WLR 246.

33. Indeed, there is not a clear plea of want of knowledge and consent either, let alone any specified nature of their case pursuant to Order 76 r.9(3). Ms Liu, for Ling, helpfully made a summary of the allegations appearing to support such a plea as follows:

(1) Madam Chung was not a person of figures, and did not understand percentage;

(2) Madam Chung was not aware of the fact that the value of her residence had appreciated significantly;

(3) Chu and Ling have been on good terms with Madam Chung whereas Ling had rarely visited Madam Chung for many years and only changed her attitude in the last 7 to 8 months before the death of Madam Chung; and

(4) Madam Chung’s concerns relating to the overspending habit of Chu could not be a reason for the amendments in respect of Clause 3(7) of the 2^nd 2011 Will.

34. This court is entitled to refuse to deal with those allegations not properly raised in the pleadings. However, since the parties have prepared to argue the case on the basis that there are disputes in respect of the testamentary capacity and the knowledge and approval of the contents of the 2^nd 2011 Will with the assistance of expert evidence, this court is prepared to resolve the parties’ dispute on such a basis regardless of the unsatisfactory state of the pleadings of Chu and Yee. That said, this court cannot allow further leeway to Chu and Yee and those allegations which have not been pleaded will not be dealt with in this Judgement.

35. Pleadings aside, it is interesting to note that initially Chu and Yee sought to propound the 1998 Will in the mistaken belief that it was the will immediately before the 2^nd 2011 Will. They made an averment in the statement of claim that Madam Chung developed a society disorder and adjustment disorder after being diagnosed with lung cancer.

36. Once they found out the existence of the 1^st 2011 Will, they changed their position and amended their statement of claim to propound the 1^st 2011 Will instead. In their attempt to uphold the validity of the 1^st 2011 Will, they must be taken to accept that the three conditions are met in the case of the 1^st 2011 Will. It follows that they no longer maintain that Madam Chung suffered from any mental incapacity on 13 January 2011 despite the alleged mental disorders.

37. The present allegations of the lack of testamentary capacity and knowledge and approval of the contents of the 2^nd 2011 Will must therefore be considered against this background.

38. Both in their pleadings and on their evidence, Chu and Ling do not take issue with the formalities of the execution of the 2^nd 2011 Will.

39. With respect to Madam Chung’s testamentary capacity as at 20 January 2011, there is no amendment to the relevant plea in the pleadings and Chu and Yee rely on the same plea in regard to the 1^st 2011 Will. They have yet to explain how the testamentary capacity of Madam Chung had vanished or in any way been impaired within the week after the execution of the 1^st 2011 Will and before the execution of the 2^nd 2011 Will. All Yee could say is that she found Madam Chung’s memory had deteriorated when she was hospitalised in December 2010.

40. Mr Miu, for Chu and Yee, fairly accepts in his opening submissions that there was no evidence of any major medical incident in the week between the execution of the two wills in January 2011 and on that basis, they accept that Madam Chung could have the testamentary capacity to make a valid will on 20 January 2011.

41. Mr Miu draws my attention to the possibility of a mild dementia suffered by Madam Chung as indicated by her MMSE scores set out in the joint expert report of Dr Lai and Dr Chung. Further, Mr Miu submits that the differences between the dispositions in the 1^st 2011 Will and the 2^nd 2011 Will could not be adequately explained and so the latter seems to be an irrational will. Therefore, this court should make an enquiry as to the soundness of mind of Madam Chung. In this connection Mr Miu relies on the often-cited dictum of the English Court of Appeal in Sharp v Adam [2006] WTLR 1059 at §79.

42. In the Reply, Chu and Yee referred to three incidents to show that by the end of 2010, the memory functions of Madam Chung had deteriorated significantly as a result of the metastasis of her cancer to her brain and the side effect of the radio therapy performed on her brain. On one occasion, Madam Chung was alleged to have forgotten her debtor when she was hospitalised at Queen Mary Hospital (“QMH”) in December 2010.

43. On another occasion, after she had discharged from QMH, she was even unable to recall her identity card number. Further, she went to the toilet very frequently forgetting that she had just been there.   

44. In terms of medical evidence, Chu and Yee rely on the two doctors instructed by their solicitors, namely, Dr Chung, a psychiatrist and Dr Choa, a neurologist. Their evidence is not really helpful to the case of Chu and Yee as explained below and Mr Miu has not said much about their evidence.

45. The major bone of contention is the last condition of knowledge and approval of the contents of the 2^nd 2011 Will on the part of Madam Chung. I have already set out the pleaded objections of Chu and Yee on this issue. Given their acceptance of the 1^st 2011 Will, their objections appear to be mainly targeted at the change in the dispositions of the residuary estate of Madam Chung. They cannot accept that Madam Chung intended to bequeath to Ling the bulk of her residuary estate consisting of the Residence, the market price of which must have been inflated after all these years.

46. Mr Miu submits that the second rule in Barry v Butlin should be incited by reasons of the following matters:

(1) Ling was instrumental in obtaining the 2^nd 2011 Will in that she

(i) was the person who gave instructions (ostensibly emanating from Madam Chung) to Mr Leung on 17 January 2011;

(ii) made the appointment with Mr Leung for Madam Chung to go to the office of Mr Lau to execute the 2^nd 2011 Will;

(iii) brought/accompanied Madam Chung to the office of Mr Leung on 20 January 2011 to execute the 2^nd 2011 Will;

(2) Ling derived substantial benefits under the 2^nd 2011 Will whereby her share of the residuary estate was increased from 25% to 98%.

(3) Ling was present at the time of the execution of the 2^nd 2011 Will ;  

(4) Ling had possession of the 2^nd 2011 Will after it was executed by Madam Chung.

47. Mr Miu submits that this court should examine the entire evidence adduced by Ling with vigilance and jealousy before this court accepts that Madam Chung knew and approved of the contents of the 2^nd 2011 Will.

48. On this issue, neither Chu nor Yee has any personal knowledge of the circumstances under which the 2^nd 2011 Will came into being. They only found out the existence of the 2^nd 2011 Will after its execution.

49. There is only one factual witness on the part of Chu and Yee. Yee alone testified to support their claim. There was an application at the outset of the trial for an order that the affirmation of Chu dated 11 July 2015 be read at trial as evidence. The application was supported by an affirmation of Mr Vincent Lam, a solicitor for Chu and Yee informing this court that Chu was hospitalised due to her lung disease and she could hardly brief without the assistance of an oxygen tank. In other words, she was not fit to attend the trial. Her affirmation merely seeks to verify the contents of her witness statements previously filed for the purpose of the trial.

50. I was convinced that her physical condition prevented her from giving live evidence in court. I was alive to the controversial nature of her evidence and the prejudice that would be caused to Ling if her evidence cannot be tested by cross-examination. However, I decided to accept the application and allow Chu and Ling to adduce the affirmation as evidence subject to the question of weight to be placed thereon.

Ling’s case

51. The unchallenged case of Ling concerning due execution is that the 1^st 2011 Will was executed at the office of PTS. Madam Chung appended her signatures on each page of the 2^nd 2011 Will in the presence of two witnesses, namely, Ms Chang and Mr Leung. Both Ms Chang and Mr Leung attested by their signatures appended on the 2^nd 2011 Will the signatures of Madam Chung in the presence of Madam Chung.

52. In the premises, the requirements laid down by section 5 of the Wills Ordinance, Cap.30 are satisfied and due execution is proved.

53. On the issue of the testamentary capacity of Madam Chung, Ling relies on both the expert evidence of Dr Benjamin Lai and Dr Edmund Woo. Dr Lai, a psychiatrist, made a joint expert report with Dr Chung. Dr Edmund Woo, a neurologist, made another joint report with Dr Choa.

54. In the joint report of Dr Lai and Dr Chung (§§37-38), their agreements and disagreements are set out as follows:

(1)   Both doctors agree that there is no record of any intellectual or memory impairment when Madam Chung was last seen by the public psychiatrist on 1 November 2010, the Confucian on 10 December 2010 and the septic shock on 19 December 2010 had remitted and would not affect her mental abilities by 31 December 2010, and the mental condition of Madam Chung in January 2011 is likely similar to her condition on 31 December 2010.

(2)   The doctors have differences in their interpretation of the MMSE score and the scores on her activities of daily living and instrumental activities of daily living, and the assessment of the testamentary capacity of Madam Chung on 20 January 2011. Madam Chung scored 18/30 or 21/30 when she was admitted to Fung Yiu King Hospital on 17 December 2010. Dr Lai is of the view that the physical condition of Madam Chung was attributable to the low scores whereas Dr Chung disagrees and conclude that Madam Chung was suffering from mild to moderate dementia.

55. In the joint report of Dr Woo and Dr Choa, with the agreement of Dr Choa, Dr Woo pointed out that it is most unlikely the cerebral metastasis in the left frontal region and the radiotherapy had any adverse effect on the condition of Madam Chung on 20 January 2011. They also agreed that the low MMSE score of Madam Chung though suggestive of a mild dementia, is no conclusive evidence of a dementia in the absence of clinical evidence. On the contrary, certain contemporaneous medical entries mutilate against any significant cognitive or emotional dysfunction at the time when she executed the wills in January 2011.

56. Both doctors also agreed that there was no evidence of any psychotic illness, delusion, hallucination or thought disorder notwithstanding that she had anxiety and depression.

57. Dr Woo pointed out that for the person to be mentally incapacitated as result of the disease of the brain (a neurological disease ), there must be strong evidence of the presence, in a sufficient matter to, of either a structural disorder of the pre-resulting in significant loss of neurones in the cerebral cortex such as due to a tumour or a stroke; or a functional disorder of the brain, termed metabolic encephalopathy, such as due to severe diseases in various organ systems (the liver, kidney or the chest), or due to the effects of medications.

58. Dr Woo concluded that, despite the possibility of her mild dementia illness, there is no medical evidence of any structural or functional disease of the brain of a degree that could result in an unsound mind or a lack of testamentary capacity at a time Madam Chung executed the 2^nd 2011 Will. In coming to this conclusion, Dr Woo also took into account contemporaneous evidence of insight and judgement of Madam Chung when she was capable of making her of decision in relation to medical treatment of her cancer.

59. Lastly, on this issue, Ling mainly relies on the evidence of Mr Leung relating to his handling of Madam Chung for the purpose of the preparation of the two wills in January 2011. Of course there is evidence emanating from both PC Chung and her setting out the circumstances leading to the execution of both 1^st and 2^nd 2011 Wills.

60. The evidence of the defence is that Madam Chung first went to the branch office of PTS in Causeway Bay (“the PTS Office”) on or about 3 January 2011 with PC Chung, Lai Sim and Ling. Then she met Mr Leung and she gave instructions directly to Mr Leung for him to draft the 1^st 2011 Will and a power of attorney. The power of attorney (“the PoA”) was prepared and made available to Madam Chung on the same day.

61. The PoA was created so that Ling and PC Chung could on behalf of Madam Chung assign her 50% share in a property known as Flat C, 2/F, Tor Po Mansion (“the Property”). Madam Chung did not have any beneficial interest in the Property and she merely held the 50% share on trust for Hung in view of his divorce with his first wife. Therefore, Madam Chung was mindful of transferring the legal title back to Hung’s second son Wan Kai Cheung (“KC Wan”) as per the instruction of Hung. On the strength of the PoA, an assignment dated 29 April 2011 was executed by PC Chung and Ling whereby the legal title of Madam Chung to the Property was transferred to KC Wan. Despite the consideration ofHK$1.4 million stated in the assignment, actually there was no money changing hands.

62. It be noted that the Property also featured in the 1998 Will. There, Madam Chung made a specific gift of the her share in the Property to Hung.

63. On 13 January 2011, Madam Chung, accompanied by Lai Sim and Ling, went to the PTS Office. She alone went to a conference room with Mr Leung and Ms Chang and executed the 1^st 2011 Will in their presence.

64. On 17 January 2011, Ling made enquiries with Mr Leung over the phone concerning Madam Chung’s intended amendments to the 1^st 2011 Will.  Ling also relayed to Mr Leung over the phone the intended amendments of Madam Chung. Mr Leung quoted a fee of HK$1,000 and Ling went to the PTS Office and paid the fee on the same day.

65. On 20 January 2011, Madam Chung accompanied by Lai Sim and Ling went to the PTS Office again and Madam Chung executed the 2^nd 2011 Will in the presence of Mr Leung and Ms Chang.

66. PC Chung made a witness statement and intended to testify for the defence. Unfortunately, he passed away before the trial. The parties have no dispute that his witness statement should be admitted as hearsay evidence. In his witness statement, PC Chung explained the relationship between Madam Chung and her three daughters and the circumstances under which the 1^st 2011 Will was executed at the PTS Office.

67. Apart from Ling, the defence called Madam Tsui as factual witness. She is remotely related to Madam Chung by reason of her relationship with Mr Lee, the natural father of the parties. She emigrated to Canada in 1995 and only occasionally returns to Hong Kong to visit her friends and relatives including Madam Chung. Madam Chung was close to her and they talked about the relationship between Madam Chung three daughters and her usury practice. She stated that for so many years Madam Chung practised usury with her dubious peers. Madam Chung had once persuaded her to take part in her usury practice by providing funds for her to extend loans. Madam Chung explained to her how interest could be earned and she found her to have a strong financial acumen. She herself was not interested because she was then a policewoman.

Analysis of evidence

68. I have heard the evidence of Chu, Ling, Mr Leung and Madam Tsui. I also take into account the hearsay evidence of Chu and PC Chung. Ms Chang also attended the trial pursuant to a subpoena duces tecum to produce all the documents relating to Mr Leung’s preparation of the two wills of Madam Chung in January 2011. I shall give my general observations about the factual witnesses.

69. PC Chung appeared to me to be an upright and principled person. He renounced his entitlements under the will of Madam Chung. He stated in his witness statement that he and his wife were happy to reside in a public housing unit and content with the financial support provided by their daughter. His renunciation was a noble act in my view given the substantial amount of the pecuniary legacy bequeathed to him.

70. Even Yee agreed under cross-examination that PC Chung was a trustworthy and straightforward person and that he was close to Madam Chung.

71. In light of his disposition and his affinity to Madam Chung, I have full confidence in the veracity of the contents of his witness statement. I am aware that he made no mention about the 2^nd 2011 Will at all. After all, he took no part in its preparation and execution. I accept his evidence that Chu and Yee had a lot of personal problems and Madam Chung did not think highly of them. Despite the fact that they were appointed executors under the first two wills, Madam Chung did not trust them in her twilight years. I believe Madam Chung actually told PC Chung many accusations against Chu and Yee and found it necessary to make a new will in place of the 1998 Will. I am not in a position and indeed not supposed to find out whether such accusations are valid here. They can however shed light on how Madam Chung rated these two daughters.

72. I also accept his observation of Ling’s ability and trustworthiness. Ling is a person of responsibility and she took good care of her late father and Madam Chung. After looking at the evidence in the round, I have a strong impression that Ling has been dutiful to her family. 

73. To a large extent, PC Chung’s evidence about the relationship between Madam Chung and the three daughters is collaborated by the evidence of Madam Tsui, who is an independent witness having no apparent financial interest in the outcome of this action. She travelled long distances to Hong Kong for the sole purpose of giving evidence in support of Ling. She appeared to me to be an honest witness. I believe she has told the court was she had actually heard from Madam Chung about her perception of her three daughters and her usury practice.

74. Concerning the evidence of Ling herself, I find Ling to be a truthful and forthcoming witness. I believe she was an asset in her family rendering assistance to Chu and Yee in addition to Madam Chung. Sadly, Chu and Yee did not sound grateful at all.

75. On the contrary, I do not think I can rely on the evidence of Chu and Yee. In case of controversy, I prefer the defence evidence. The factual evidence of Chu and Yee is not impressive at all. The bulk of allegations against Ling, which are mostly irrelevant, actually originated from Chu. Her grudges against Ling are just too obvious. I cannot accept her allegation that Madam Chung distrusted Ling at all.

76. Yee was a poor witness and she displayed her proneness to exaggeration and fabrication in the course of her testimony. I have no confidence in her evidence not supported by other credible evidence at all. I need only give one example at this juncture. It relates to her allegation that Madam Chung once forgot her ID card number.

77. The purpose of this allegation is to make this court believe that Madam Chung’s mental capacity was very poor after her discharge from QMH in December 2010/January 2011 and hence could not know and approve the contents of the 2^nd 2011 Will, despite their position that she could do so in regard to the 1^st 2011 Will.

78. It is common ground as supported by medical evidence that Madam Chung had a bad fall on 1 December 2010 and fractured her left neck of femur. She was first admitted to the orthopaedic ward of QMHand spent about two weeks there before being transferred to Fung Yiu King Hospital for occupational therapy treatment on 17 December 2010. On 20 December 2010, Madam Chung returned to QMH until she was discharged on 31 December 2010. She had therefore been hospitalised for the entire December 2010.

79. Yee testified that in the afternoon of the day (31 December 2010) when Madam Chung returned home, she went to her home to visit her. Lai Sim and Chu were already there having assisted her discharge from QMH. It occurred to them that Madam Chung would have an appointment with her psychiatrist soon. Knowing that the nurse of the psychiatrist might ask her to tell her name and ID card number, Chu and Lai Sim then asked her to tell them her ID card number so as to ensure she would be able to do so when she went to the clinic. To their dismay, Madam Chung could not remember her ID card number. According to them, she used to be able to tell without any difficulty. Yee confirmed that it was the only time that Madam Chung showed her inability to remember her ID card number.

80. I am certain that she merely made up a false story despite her fluency in her narrative. The absurdity of this account hardly needs explanation.

81. Chu in her witness statement gave another account of Madam Chung’s forgetting her ID card number. She said that Madam Chung was unable to tell her ID card number when she was working on the formalities for her discharge from QMH. Chu did not say Madam Chung forgot her ID number again when she returned home. Yee confirmed in court the accuracy of the contents of Chu’s witness statement. More importantly, she did not say anything about the failure of Madam Chung to recall her ID card number at home at all. She agreed with Ms Liu that she relied on the loss of memory of Madam Chung to show that she did not know and approve of the contents of the 2^nd 2011 Will. She could not have forgotten to mention this incident in her witness statement and only disclosed the same for the first time in the witness box.

82. It is remarkable that Yee actually paid no regard to their own pleaded case at all. She needed not fabricate the new story. In paragraph 12(b) of the Reply, a wholly different story to support their allegation of the deterioration of the memory functions of Madam Chung is pleaded as follows:

“One day after Madam Chung’s discharge from QMH, Yee was performing foot massage on Madam Chung when she heard Madam Chung talking on her mobile phone. Apparently Madam Chung was asked for her HKID number. Yee heard Madam Chung exclaiming that she had forgotten her HKID number. Madam Chung then asked Lai Sim to fetch her HKID card, and then advised the other party her HK ID number.”

83. On the other hand, the evidence of Mr Leung is of pivotal importance to the core issue of knowledge and approval of the contents of the 2^nd 2011 Will. To assess his credibility, I pay particular attention to his demeanour in the witness box apart from the inherent probability of his testimony and the contemporaneous documents produced by him. Understandably, Mr Miu tested his evidence vigourously under cross-examination though curiously the focus was more on the 1^st 2011 Will, the validity of which is not in dispute. Mr Leung’s evidence, supported by the contemporaneous documents, was not shaken in the least and he appeared to me to be a reliable witness trying his very best to give an account of how he dealt with Ling and Madam Chung and prepared two wills for Madam Chung in January 2011. 

84. Before I deal further with the evidence before me, I shall first remind myself of how the second rule in Barry v Butlin should be applied in the present case. It has a bearing on the approach of my assessment of the evidence.

85. Ms Liu does not really argue against the application of the second rule in Barry v Butlin. She submits that in the circumstances of the present case the second rule in Barry v Butlin should be on the lightest side of the scale. She helpfully refers to me the relevant authorities. It is apposite for me to remind myself of such general principles.

86. The Nina Kung case serves as an excellent starting point though neither knowledge nor approval of the subject will was in issue. There, in §§204-222, Ribeiro PJ reviewed the relevant English authorities concerning the second rule and explained its nature. First, Ribeiro PJ referred to the rules set out by Parke B in Barry v Butlin (1838) 2 Moo PC 480. Regarding the second rule, Park B said this,

“The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that all generally to excite the suspicion the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which is not to pronounce and nest the suspicion is removed, and it is judicially satisfied with that the paper propounded does expressed the true Will of the deceased.”

87. The effect of the second rule is that once the circumstances call for its application, knowledge and approval must be proved by affirmative evidence adduced by the proponent to be subject to a vigilant and jealous examination and it is no longer rebuttably presumed upon proof of due execution and testamentary capacity.

88. Ribeiro PJ pointed out that by the second rule, Parke B did not seek to create a general rule imposing a burden on the proponent to dispel suspicious circumstances surrounding a will. Ribeiro PJ further set out the observation of Parke B:

“All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the Legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.”

89. Indeed the circumstances and hence the degree of suspicion could vary. Viscount Simonds in Wintle v Nye [1959] 1 All ER 552 said this,

“In all cases the court must be vigilant and jealous. The degree of suspicion with very with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so rave that it can hardly be removed.”

90. The application of the second rule has been extended to those cases where a person takes a benefit under a will which he has been instrumental in preparing or obtaining without being its actual creator: see Fulton & Anor. V Andrew & Ors. (1874-1875) LR 7 HL 448 and Tchilingirian v Quzounian [2003] EWHC 1220 at §73.

91. The second rule is evidential in character, which follows from the fact that it displaces the usual presumption of the knowledge and approval and activates the burden on the proponent of the will affirmatively to prove such knowledge and approval: see Re Estate of Fuld, decd (No 3) [1968] P 675 at p.698 per Scarman J.

92. Once the second rule is engaged, the entire evidence including matters and circumstances not attending, or even relevant, to the preparation and execution of the will itself must be considered with the appropriate degree of vigilance and jealousy: Re Yip Keung, unreported, HCAP15/2004 at §72, and Cheung Wai Lan v Kwok Chung Chee, unreported, CACV 128/2014, 15.4.2015 per Kwan JA at §45. The degree of vigilance and jealousy to be exercised in the examination of the entire evidence should be commensurate with the gravity of the circumstances which excite the suspicion: Cheung Wai Lan v Kwok Chung Chee, supra, per Kwan JA at §49.

93. The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less it also no more: Fuller v Strum [2002] 1 WLR 1097 (CA) per Longmore LJ at §78. It should be borne in mind that the ultimate aim of the second rule is to ensure a proper proof of knowledge and approval. The imposition of the second rule does not mean that unless each and every relevant or suspicious circumstances has been satisfactorily explained, the court can never be satisfied that the testator knew and approved of the contents of the will. The standard of proof required in probate proceedings is satisfaction on the balance of probability: Fuller v Strum per Chadwick LJ at §72.

94. With these principles in mind, I shall consider the third condition after the second condition of testamentary capacity in light of all the evidence placed before this court. The first condition of due execution as explained above is not in issue and has been proved on unchallenged evidence. 

Testamentary capacity

95. The medical evidence adduced by the parties led me to the clear conclusion that there was no problem with the testamentary capacity of Madam Chung at all.

96. Madam Chung had been in a state of confusion and had a septic shock during her December hospitalisation. Yee told this court how confused Madam Chung was and she could not even recognise her. However, I accept the medical evidence of Dr Lai that this condition was merely due to her low blood level of potassium and was temporary in nature.

97. For the low MMSE scores, I accept the evidence of Dr Lai. I also accept the evidence of Dr Woo that the mild dementia suggested by the low scores was not supported by any clinical evidence showing structural or functional disease of the brain of a significant degree. The fact that Madam Chung was able to communicate with Mr Leung clearly at the PTS Office negatives any mental deficiencies.

98. I am prepared to accept the evidence of Dr Woo in its entirety, which has not been contradicted by any cogent evidence. Dr Woo was alive to the presence of brain metastasis, psychological illness, psychotropic medications and recent delirium of Madam Chung but was satisfied on contemporaneous evidence that the cognition of Madam Chung was not impaired. I accept his conclusion.

99. I reject the evidence of Dr Choa insofar as those in disagreement with Dr Woo. I am unimpressed with his evidence. He even raised a rhetorically question in his medical report as to cast doubt on Madam Chung’s decision to deprive Chu of her share in her residuary estate. He further raised the possibility of undue influence by Ling on Madam Chung. This is entirely inappropriate for Dr Choa to make these observations clearly outside the ambit of his expertise. He has lost his neutrality.

100. I fail to see how the pleaded allegations of Chu and Yee could raise any doubt about the testamentary capacity of Madam Chung, particularly given their current position that the 1^st 2011 Will is valid. The allegations of memory loss concern the three alleged incidents taking place before the execution of the 1^st 2011 Will.

111.   Just for completeness, I am unable to accept that there is any truth in those alleged incidents. I cannot accept the evidence of Yee. Her account of the visit paid by a lady debtor to Madam Chung at the canteen of QMH was very dramatic showing little regard to the pleaded allegations. I have no hesitation in rejecting her incredible account.

112.   As regards her alleged loss of memory relating to her ID card number, I have already stated my conclusion. I reject this allegation without hesitation.

113.   Lastly, I refuse to accept the allegation that Madam Chung forgot that she had already been to the toilet. It was not borne out by the evidence at all.

114.   In any event, as rightly pointed out by Ms Liu, poor memory could not be equated with lack of testamentary capacity. In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ made it clear that a testator can have the requisite testamentary capacity despite his very imperfect memory even greatly impaired by age or disease. What is required is that he has a disposing memory and is capable of recollecting the property he is about to bequeath, the manner of distributing it and the objects of his bounty.

115.   In the present case, this court has no difficulty in accepting the evidence of Mr Leung and Ling that Madam Chung herself was able to give clear instructions to Mr Leung at the PTS Office on 3 January 2011. I also accept Mr Lau’s observation of Madam Chung’s ability to maintain a coherent dialogue with him during the three visits in January 2011. This is cogent evidence of her testamentary capacity. Absent any unequivocal evidence, this court cannot accept that Madam Chung lost such a capacity when she executed the 2^nd 2011 Will less than three weeks later.

116.   I can therefore conclude that Madam Chung satisfied the requirements in Banks v Goodfellow and had the requisite testamentary capacity when she executed the 2^nd 2011 Will.

Knowledge and approval

117.   Now I come to the third condition. By reason of the fact that Ling gave oral instructions to Mr Leung over the phone on 17 January 2011 as to how the 1^st 2011 Will should be amended and that by such amendments she obtained almost the entire residuary estate as opposed to ¼ of the same, I believe that the second rule in Barry v Butlin should apply and Ling cannot simply rely on the rebuttable presumption of testamentary capacity.

118.   I should make it clear that I do not accept the submissions of Mr Miu that the fact Ling was present at the time of the execution of the 2^nd 2011 Will can in any way justify the invocation of the second rule, particularly given the lack of any plea of undue influence or fraud. Nor can the fact that she had in her possession the 2^nd 2011 Will after its execution.

119.   Madam Chung had been hospitalised for a whole month prior to the execution of the two wills in January 2011. Since then her movement was limited and could not walk without assistance. It is not at all surprising that shortly after her discharge, she acted quickly to revise her dispositions of the Estate as provided in the 1998 Will made more than a decade ago.

120.   Neither Ling nor Madam Chung had any previous dealings with PTS.  Ling had no personal relationship with anyone of PTS. Ling chose PTS to prepare the wills for Madam Chung just because the PTS Office was close to the Residence and Madam Chung was not that mobile. Indeed, Madam Chung was confined to a wheelchair in all of three visits she paid the PTS Office. All these were not challenged by Chu and Yee with contrary evidence.

121.  Ling was completely disinherited under the 1997 Will whereas Chu and Yee shared the Estate equally. Ling however had more or less the same share under the 1998 Will. Under the 1^st 2011 Will, the pecuniary gift of Ling was far more than those of Chu and Yee, not to mention the fact that Yee had no share in the residuary estate. In spite of this, Chu and Yee accept the validity of the 1^st 2011 Will. It follows that the mere disparity in the entitlements of the three daughters causes no suspicion.

122.   I believe the real disquiet about the 2^nd 2011 Will of Chu and Ling arose from the drastic increase of the share of Ling in the residuary estate at the expense of Chu, and to a lesser extent, PC Chung and Lai Sim. I accept the evidence of PC Chung that by the end of 2010, Madam Chung was very unhappy with Chu and Yee and always wanted to revise her testamentary dispositions. A further reduction in Chu’s entitlement under the 2^nd 2011 Will against this background is by no means surprising.

123.   They further allege that the use of percentages in the distribution of the residuary estate is suspicious by reason of the fact that Madam Chung did not know percentages.

124.  However, there is not a shred of evidence of Madam Chung’s alleged ignorance of percentages. Quite on the contrary, the overall picture supported by indisputable evidence is that she had long worked very well with figures. She made written records of the loan transactions and different accounts of her borrowers in her usury practice. I have perused such records. It was indeed a serious business that Madam Chung ran. It can be seen that repayments were very often made by her borrowers in instalments. Mr Miu makes a valid observation that in all such records, no percentage was used. I do not however take that as an indication that Madam Chung did not know the use of percentages at all.

125.   I also accept the evidence of Madam Tsui that in her effort to persuade her to finance her usury practice, Madam Chung had told her that interest could be earned by the formula of “Nine out; Thirteen in” [九出十三歸] meaning for a loan in the amount of HK$10,000, the actual amount advanced to the borrower is only HK$9,000 and the borrower is obliged to repay HK$13,000. She is adamant that Madam Chung understood percentage because she often mentioned [成]. I am aware that she did not say this in her witness statement but she was not cross-examined seriously about this and it was not suggested that this was a fabrication. I believe her evidence. I agree with Madam Tsui that it may not be necessary to explain and apply the formula in percentage terms and [成] would be sufficient. After all, percentage and [成] are similar if not identical conceptually.

126.   Percentage is no rocket science and I cannot believe a usurer does not understand it. I refuse to accept the allegation that Madam Chung could not understand the use of percentages.

127.   More importantly, it should not be overlooked that the respective shares in the residuary estate were actually expressed by way of fractions in the 2^nd 2011 Will. They were expressed in percentage terms as a supplementary explanation only. Chu and Yee have made a mountain out of a molehill.

128.   Applying the second rule, I require Ling to prove knowledge and approval with affirmative evidence and I am prepared to scrutinise the entire evidence with vigilance and jealousy. On the evidence of Mr Leung, whose professional integrity has not been called into question, I make the following factual findings:

(1) Mr Leung had ample experience in preparation and execution of wills. On average he prepares 100 wills and attends to the execution each year.

(2) On or about 2 January 2011, Mr Leung received phone calls from Ling, who made enquiries about preparation of a will for Madam Chung. An appointment was made as a result.

(3) On 3 January 2011, Madam Chung, accompanied by PC Chung, Lai Sim and Ling went to the PTS Office and met Mr Leung. Madam Chung gave oral instructions to Mr Leung about her intended testamentary dispositions independently and Mr Leung made a contemporaneous record of the instructions.

(4) Mr Leung told her that once the draft was available, he would call her to come to the PTS Office again to execute the will.

(5) On 5 January 2011, Ling called Mr Leung and told him that Madam Chung wanted to change the instructions in respect of those pecuniary legacies. Mr Leung first recorded such new instructions on his record by pencil and then after the phone call, Mr Leung made our record of the new instruction by his ball pen.

(6) On those instructions, Mr Leung prepared a draft will, which was approved by Ms Chang. Ling was informed duly and on the same day she went to the PTS Office to collect the draft.

(7) On 13 January 2011, Madam Chung and Ling went to the PTS Office. Mr Leung gave Madam Chung the original of the 1st 2011 Will in the meeting room and read to her its entire contents verbatim.

(8) Madam Chung was in good shape and spoke coherently. She indicated her understanding of the contents when asked by Mr Leung.

(9) Then, Mr Leung asked Ms Chang to go to the meeting room

 and witness the execution of the 1st 2011 Will by Madam Chung.

(10) Madam Chung was given the original copy of the 1st 2011 Will.

(11) On 17 January 2011, Mr Leung received a call from Ling indicating that Madam Chung would like to make amendments to the 1st 2011 Will. Ling told Mr Leung that Madam Chung wanted to change Clauses 3(3) and 3(7). For the former clause, Madam Chung wanted the monetary gift of Chu be paid by monthly instalment of HK$10,000 each because of her overspending habit. She also wanted to make provisions for situations where Chu did not live long enough to receive the entire monetary gift.

(12) For the latter clause, Ling told Mr Leung that the residuary estate should be distributed in the following manner:

1/100 to PC Chung;

1/100 to Lai Sim;

98/100 to Ling.

(13) Mr Leung told Ling the charge in the sum of HK$1,000. Ling went up to the PTS Office and paid the charge on the same day.

(14) Mr Leung duly made a contemporaneous record of the new instructions. Based on the new instructions Mr Leung prepared a draft of the 2^nd 2011 Will. In regard to the distribution of the residuary estate among PC Chung, Lai Sim and Ling, in addition to the fractions of 1/100 and 98/100, Mr Leung expressed them in percentage terms in brackets.

(15) On 20 January 2011, pursuant to an appointment made with Ling, Madam Chung and Ling met Mr Leung at the PTS Office.

(16) Then, Mr Leung gave an original copy of the 2^nd 2011 Will to Madam Chung whereas he had a photocopied version. Again, he read to her the entire contents of the document in Cantonese. Afterwards, Mr Leung explained to Madam Chung the amendments including the provisions relating to the distribution of the residuary estate. Mr Leung recalled having explained to Madam Chung that 1/100 means one dollar out of every HK$100. He did not make his explanations in percentage terms to Madam Chung contrary to the submissions of Mr Miu.

(17) Madam Chung did not have any problem with the contents of the 2^nd 2011 Will and she confirmed with Mr Leung her understanding of the same. Therefore, Ms Chang was called to witness her execution of the same together with Mr Leung. Again, the executed original copy was given to Madam Chung whereas a photocopied copy was kept by PTS.

129.   I pause here to note that it is well-established that evidence of the will being read over to the deceased or by the deceased is the most satisfactory evidence to establish this knowledge and approval: Barry v Butlin at p.485 and also Cheung Wai Lan v Kwok Chung Chee, supra, per Kwan JA at §47.

130.   I should continue to examine the evidence of Ling with vigilance and jealousy. With the acceptance of the validity of the 1^st 2011 Will, the controversy should be more focused on what transpired between 13 January 2011 and 20 January 2011 and whether Madam Chung fully understood and approved of the amendments reflected in the 2^nd 2011 Will. I should however not overlook all other evidence.

131.   On the impressive evidence of PC Chung, Madam Tsui and Ling, which I accept, in addition to what I have concluded above, I can make the following relevant factual findings:

(1) Madam Chung had long been unhappy with Chu and Yee and always intended to revise her 1998 Will.

(2) In contrast, Madam Chung was close to Ling and trusted her.

(3) There was an occasion during the hospitalisation of Madam Chung in December where Chu and Yee insisted that Madam Chung should leave the hospital and make a new will despite the poor physical condition of Madam Chung. They were stopped by PC Chung.

(4) When Madam Chung found this out, she was very angry with Chu and Yee.

(5) On 13 January 2011, Madam Chung executed the 1^st 2011 Will with full knowledge and approval of its contents.

(6) From 14 to 17 January 2011, Madam Chung explained to Ling why she wanted to amend the 1^st 2011 Will. For Clause 3(3), part of her explanation appeared in the payment term of the monetary legacy to Chu in the 2^nd 2011 Will. Madam Chung had a particular concern about the health condition of Chu and did not want her properties to be ended up in the hands of her boyfriend. Thus, she wanted the amendments to make sure that no part of the monetary legacy of Chu could become part of her own estate.

(7) Madam Chung also indicated to Ling that PC Chung was not a greedy person and did not care how much he would be bequeathed under her will. She was very right.

(8) Lastly, Madam Chung had a concern about her gift to Lai Sim. Her husband, Hung, long been in poor health. Madam Chung worried that after the death of Hung, Lai Sim might get remarried. Or even if she remained widowed, there is no way to supervise her dealing with the properties bequeathed to her. She reckoned that the monetary legacy and 1/100 of her residuary estate would suffice.

(9) On 17 January 2011, Ling relayed the intended amendments to Mr Leung and paid the professional charge of HK$1,000.

(10) On 20 January 2011, Madam Chung, accompanied by Lai Sim and Ling went to the PTS Office for the purpose of the 2^nd 2011 Will.

(11) Before it was executed, Mr Leung read its full contents to Madam Chung and explained to her the amendments. Madam Chung confirmed her understanding of the contents with Mr Leung.

(12) Lai Sim then asked Mr Leung whether 1/100 means HK$10,000 out of HK$1 million and Mr Leung replied in the affirmative.

(13) Madam Chung executed the 2^nd 2011 Will in the presence of Mr Leung and Ms Chang.

132.   None of the above findings is contradicted by any contrary evidence or is inherently improbable.

133.   The only matter which possibly arouses some suspicion is whether the amendments were actually suggested by Ling or Madam Chung agreed to them under the undue influence of Ling. However, there is no such allegations and I believe Ling was honest in her involvement in the preparation of the wills.

134.   I do not find the explanations given by Madam Chung to Ling to be irrational or odd in any respect as submitted by Mr Miu. In particular, I cannot accept his submission that Lai Sim by reason of her being middle-aged would in any event be unable to remarry anyone after the death of Hung and so Madam Chung’s concern was unreasonable.

135.   Mr Miu submits that Madam Chung could simply increase the amount of pecuniary legacies of PC Chung and Lai Sim instead of keeping their shares in the residuary estate. I agree Madam Chung could have done so and there were indeed many other options. But I see nothing suspicious in her final disposition.

136.   Mr Miu also raises doubt as to why Madam Chung intended to increase the amounts of the monetary legacies of Chu and Lai Sim before the finalization of the 1^st 2011 Will and then decided to reduce their overall entitlements under the 2^nd 2011 Will. In the first place, I would not say Madam Chung’s concerns were unreasonable. Further, this was within the testamentary freedom of Madam Chung and I can see nothing suspicious. It is trite that a testator is not required to justify each and every disposition of his properties.

137.   I have also gone through the list of matters set out in a 2-page document lodged by Mr Miu. He urges upon me to consider all of them and the suspicions caused by any of them individually or cumulatively. I have no intention to set them out here. Apart from those of them having been dealt with by me above, most of the allegations were unpleaded, nit-picking and irrelevant to the issue of knowledge and approval. Those arguments about the actual size of the estate have no bearing on the pleaded issues. It is not pleaded that Madam Chung was not able to recollect the property she was about to bequeath. Nor is it alleged that she failed to deal with any particular property under the 2^nd 2011 Will. Any controversies about the contents of her residuary estate could not affect the validity of the 2^nd 2011 Will.

138.   Mr Miu also urges this court to consider the reaction of Lai Sim to the substantial reduction of her entitlement under the 2^nd 2011 Will. He further submits that there was no reason why Madam Chung should allow Lai Sim to be present when the 2^nd 2011 Will was executed at the PTS Office given her understandable disappointment at the amendments.

139.   Lai Sim might or might not be frustrated with the reduction given the fact that she already had a monetary gift of HK$400,000. I did not really have to resolve the factual dispute as to how Madam Chung reacted to her frustration at home. Indeed Madam Chung could have on the one hand asked Chu and Yee why Lai Sim had changed her attitude towards her and on the other hand, snarled at Lai Sim for being ungrateful and insatiable. These two matters were not mutually exclusive. Even if Madam Chung asked Chu and Yee that question, which I do not accept as a matter of fact, it does not follow that she did not know or approve the amendments, as suggested by Mr Miu. It might not be a genuine question to which Madam Chung seriously required their answer. Furthermore, she might merely want to find out whether Chu and Yee learnt about her testamentary dispositions from Lai Sim.

140.   In any event, I prefer Ling’s evidence and Madam Chung was entitled to hold the view that Lai Sim should be content with what she had been bequeathed under the 2^nd 2011 Will. This further reinforces Ling’s case of knowledge and approval showing Madam Chung’s appreciation of the reduction of Lai Sim’s share under the 2^nd 2011 Will.

141.   Madam Chung might have been more discreet and avoided any participation of Lai Sim on 20 January 2011 altogether. Nevertheless, I can sense no suspicion. If anything, it showed that both Madam Chung and Ling had nothing to hide from Lai Sim about the amendments relating to the residuary estate. Such amendments were disclosed openly in the presence of Lai Sim at the PTS Office and could not have escaped her attention. Indeed, Lai Sim asked Mr Leung about its implications. She remained calm after his explanation. Ling had no intention to enrich herself secretly at the expense of Lai Sim. I have no doubt that such amendments originated from Madam Chung and were her genuine dispositions.

142.   Having considered all the evidence and with the foregoing factual findings, I have no doubt that Madam Chung knew and approved of the contents of the 2^nd 2011 Will.

Conclusion and order

143.   In the premises, this court is satisfied that Ling has discharged the legal or persuasive burden of proof on the balance of probabilities that the 2^nd 2011 Will is the will of Madam Chung. I am satisfied that it was duly executed when Madam Chung was of testamentary capacity and that she knew and approved of the contents of the same on overwhelming evidence. This is a clear conclusion I can reach without being troubled by any suspicion as to the alleged lack of knowledge and approval on the part of Madam Chung.

144.   I therefore dismissed the claim of Chu and Yee.

145.   The question of costs, which should be determined in light of Nina Kung v Wang Din Shin (No2) (2006) 9 HKCFAR 800, does not appear to be straightforward. I invite parties’ written submissions (not more than 5 pages). Ling should lodge hers within 21 days from the date of this Judgment and Chu and Yee should lodge theirs within 21 days thereafter. I am aware that Chu and Yee are legally aided and legal aid taxation of their own costs is necessary. I should be able to determine the costs order on paper.

146.   Lastly, I thank both Mr Miu and Ms Liu for their assistance in this matter.